The Bomber, the Boston Federal Public Defender and the Anti-Deficiency Act

Zoe Tillman, writing for the National Law Journal, noted today that “[a]s the federal public defender office in Boston prepares to defend Dzhokhar Tsarnaev, the 19-year-old charged in the Boston Marathon bombings, the lawyers involved face an added challenge: managing the case in the midst of furloughs.” Public Defenders for Boston Suspect Facing Furloughs (free registration required).

To make matters even more complicated, there may be a serious question whether those defenders would violate federal law if they appeared in court during a furlough day.  According to the GAO,

The Antideficiency Act prohibits federal employees from

*making or authorizing an expenditure from, or creating or authorizing an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law. 31 U.S.C. § 1341(a)(1)(A).

*involving the government in any obligation to pay money before funds have been appropriated for that purpose, unless otherwise allowed by law. 31 U.S.C. § 1341(a)(1)(B).

*accepting voluntary services for the United States, or employing personal services not authorized by law, except in cases of emergency involving the safety of human life or the protection of property. 31 U.S.C. § 1342.

*making obligations or expenditures in excess of an apportionment or reapportionment, or in excess of the amount permitted by agency regulations. 31 U.S.C. § 1517(a).

Federal employees who violate the Antideficiency Act are subject to two types of sanctions: administrative and penal. Employees may be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office. In addition, employees may also be subject to fines, imprisonment, or both.

U.S. Government Accountability Office, Antideficiency Act Background

Imagine this:  “Sorry, judge, I can’t show up today to defend a guy charged with blowing up Boston because if I do I may violate the law.”  Nice.

Rather than trying to solve this puzzle, doesn’t it make far more sense for Congress to authorize an emergency appropriation for the judiciary and, most particularly, Federal Public Defenders and CJA counsel?


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